Terms of Sale
TERMS AND CONDITIONS OF SALE AND USE
Updated: 29 July, 2020
These Terms and Conditions of Sale and Use (this “Agreement”) apply to all orders, purchases and use of FORM Smart Swim Goggles (“Goggles”) and any other products (together with the Goggles, each a “Product”) manufactured by or for FORM Athletica Inc. (“FORM”) via any website whose domain ends in “formswim.com” or such other websites and mobile applications as made available by FORM and its affiliates from time to time (collectively, the “Site”). In this Agreement, the buyer of any Product via the Site is referred to as “you”; accordingly, if the individual making the purchase is doing so on behalf of a corporation or other legal entity, he or she represents and warrants having the authority to do so and to bind such entity to this Agreement.
This Agreement contains important terms that, among other things, affect FORM’s liability and your legal remedies against FORM, including a mandatory arbitration agreement. Please read this Agreement carefully, BEFORE you complete a transaction to purchase a Product on the Site. By completing a transaction to purchase a Product on the Site, you agree to be bound by this entire Agreement including the warranty disclaimers, limitations of liability and methods of resolving disputes.
Terms of Sale:
1. Orders, Price and Payment
(a) Price and Order. The total price for the Products you are purchasing will be stated on the confirmation notice displayed at the last step of the ordering transaction before you confirm your purchase, and, upon your acceptance of the confirmation notice as well as all of the terms and conditions of this Agreement, the notice becomes your “Order”, an offer to us to purchase such Products on the terms set out therein and this Agreement.
(b) Availability. All Orders are subject to availability. When placing your Order, the confirmation notice will display whether the item is in-stock (an “In-Stock Product”), out-of-stock (an “Out-Of-Stock Product”), or a pre-order (a “Pre-Ordered Product”) and may provide an estimated delivery time frame.
(c) Acceptance. Orders submitted by you are not binding upon FORM until the Order is accepted by FORM as indicated by FORM’s issuance of a Purchase Invoice (an “Invoice”) to you by email for such Order, which email also constitutes FORM’s acceptance of your Order.
(d) Merchant. FORM may appoint a merchant of record (the “Merchant”), as indicated in your confirmation notice, as the merchant of record for the transaction. In such a case, the Merchant will accept payment, handle Orders, and handle shipments for and behalf of FORM. Accordingly, your point of contact for dealing with Orders may be the Merchant and not FORM directly; check your Invoice for more details.
(f) Subject to FORM Cancellation. FORM reserves the right to decline to accept your Order, or to cancel an accepted Order after an Invoice, at any time, including, without limitation, in the event there is an error, typographical error, inaccuracy, omission or mistake to the price of any of FORM’s Products or Product descriptions, promotions, offers or availability. Prices, specifications and configurations are subject to change without notice. FORM reserves the right at any time in FORM’s sole and absolute discretion and without notice to correct any errors, inaccuracies or omissions to the information on the Site.
THE FOLLOWING PARAGRAPH OF CLAUSE 1.(f) IS NOT APPLICABLE TO QUEBEC CONSUMERS
Although FORM makes reasonable efforts to ensure that the Site is current and contain no errors or inaccuracies, FORM makes no representations, warranties or guarantees that the information, content or materials included in the Site will be error-free or completely accurate or current at all times, or at any time.
(g) Taxes, Duties and Extra Charges. Prices advertised on the Site may not include shipping and handling charges or applicable country or region-specific sales, goods or services taxes, which may be added to the price you pay. Calculation of taxes and shipping charges occurs before your Order is submitted and charged to your credit card as part of the total order amount. You are also responsible for any customs duties or any other similar fees associated with your Order.
(h) Currency. All pricing will be noted on your Order and on the Invoice in the appropriate country- or region-specific currency as indicated thereupon. Depending on that currency, your credit card company may apply a conversion rate and additional fees that are outside of FORM’s control. Furthermore, if for any reason pursuant to this Agreement you become entitled to a refund, that refund may be converted by your credit card company at a different rate meaning that it may be lesser than, or greater than, the actual amount charged to you by your credit card company, as the case may be.
(i) Privacy. For information about FORM’s collection, use and sharing of your personal information, please see FORM’s privacy statement available at formswim.com/privacy-policy.
2. Changes to Orders
(a) Changes. You may request a change to your Order under any Invoice, provided that the Product has not been shipped by the time of your request, by contacting FORM using one of the methods available at formswim.com/contact-us. Please note that any such changes may delay other items of your Order, or may delay your Order entirely. Changes to existing Orders are treated as a new Order, subject to acceptance and other procedures generally described in Section 1. You will be responsible for any additional charges resulting from any accepted changes to your Order, and if an accepted change would entitle you to a refund, FORM or its Merchant will process such refund within 7 business days of the acceptance of the change.
(b) Cancellations. You may request cancellation of any Order (even after an Invoice has been accepted) at any time until the applicable Product(s) has/have shipped by contacting FORM using one of the methods available at formswim.com/contact-us.
3. Fit Guarantee, Returns and Refunds
(a) Fit Guarantee. FORM offers a limited 45 day fit guarantee for the Goggles (the “Fit Guarantee”). The Fit Guarantee does not apply to any other equipment, products or merchandise sold by FORM or the Merchant, including without limitation accessories, replacement parts, apparel and third party products. More information regarding FORM’s Fit Guarantee is available at: formswim.com/returns (the “Return Policy”). For Quebec consumers, all provisions of this clause apply in addition to the legal warranty.
(b) Requesting an RMA. The Fit Guarantee return period applicable to the Goggles you have purchased commences when FORM or the Merchant ships the Goggles and expires 45 days following such date (the “Return Period”). To request a refund, you must, within the Return Period, contact FORM (by email at email@example.com) or the Merchant during business hours to request a return merchandise authorization (“RMA”). FORM or the Merchant will send to you an RMA form by email and you must complete the RMA form and return it to FORM or the Merchant by following the instructions contained on the RMA within 30 days.
(c) Returning the Goggles. You must return the Goggles to FORM following the RMA instructions and the Return Policy. Subject to your compliance with the RMA instructions and the Return Policy, if you are located in Canada or the United States, FORM will cover shipping costs incurred in returning the Goggles. If you are located outside of Canada or the United States, you are solely responsible for all shipping costs incurred in returning the Goggles.
(d) Non-Compliant Returns; Restocking Fee. If the returned Goggles have not been returned in accordance with the Return Policy, FORM may refuse to accept the return by returning the Goggles to you, in which case you will not be entitled to any refund.
(e) Processing Refund. Any refunds made by FORM or the Merchant under the Return Policy will be paid to the person who originally purchased the Goggles being returned. Subject to Section 3.(d), FORM or the Merchant will refund the purchase price for the Goggles that was actually paid to FORM or its Merchant (for greater certainty, including applicable taxes but excluding shipping costs and any other extra charges for which you are responsible pursuant to the terms and conditions you accepted at the time of purchase) via the same means FORM or its Merchant received payment in the first instance.
(a) Products. Products will generally be shipped to you within the estimated shipping time period indicated at the time of the Order. FORM does not guarantee shipping times and you acknowledge and agree that any shipping timeframes or dates provided by FORM are estimates only and subject to change.
(b) Priority. All Products will be shipped in the order in which Invoices have been issued to FORM’s customers, including you.
(c) Receipt. The date of shipping does not guarantee the date of receipt; the actual delivery date to you will depend on the shipping method selected and available to you during your Order.
(a) General. FORM will arrange to deliver the Products in your Order to the address you provided in your Order, as noted on the Invoice. Title to the Products and risk of loss passes to you upon FORM’s delivery of the Product to the carrier you have selected or that was made available to you during your Order.
(b) Delivery Procedure. FORM’s carriers will complete delivery of the Product to you at the address you specify in your Order.
(c) Investigations. FORM reserves the right to investigate (or to retain a third party to investigate) any claims or returns on the basis of incorrect delivery procedure and false information. In the unlikely event that your Order arrives with visible damage to the exterior packaging, you may either take delivery or refuse the shipment.
(d) Errors and Damages. You must examine the Product after you receive it. If an Order or shipping error has occurred, or if your Product is damaged (except for latent damage not readily apparent) you must notify FORM of the particulars as soon as possible, but in any event within 15 days of the carrier’s delivery to you (the “Inspection Period”).
THE FOLLOWING PARAGRAPH OF CLAUSE 5.(d) DOES NOT APPLY TO QUEBEC CONSUMERS
Any claims made after the Inspection Period will not be honoured and the Product shipped and delivered to you will be deemed to have been delivered and accepted by you, and FORM will not consider any claim for damaged or missing Products outside of this time period.
(e) Return Procedure. If your Product was received in error, or in damaged condition or other than in apparent good order, please contact FORM immediately using one of the methods available at formswim.com/contact-us.
6. Limited Warranty
The limited warranty made available by FORM at formswim.com/warranty (the “Limited Warranty”), which is incorporated into this Agreement by reference, applies to all Goggles purchased through the Site.
THIS CLAUSE DOES NOT APPLY TO QUEBEC CONSUMERS
To the extent permitted by applicable laws, the Limited Warranty is in lieu of all other warranties or conditions, express or implied. OTHER THAN THE GOGGLES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL EQUIPMENT, PRODUCTS AND MERCHANDISE SOLD BY FORM OR A MERCHANT, INCLUDING WITHOUT LIMITATION ACCESSORIES, REPLACEMENT PARTS, APPAREL AND THIRD PARTY PRODUCTS, ARE FINAL SALE AND SOLD WITHOUT ANY WARRANTIES OR CONDITIONS. EXCEPT AS SET OUT IN THE LIMITED WARRANTY AND AS PERMITTED BY APPLICABLE LAWS, FORM SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, DURABILITY, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WHERE IMPLIED WARRANTIES CANNOT BE DISCLAIMED BY APPLICABLE LAW, SUCH IMPLIED WARRANTIES ARE LIMITED TO THE DURATION OF THE LIMITED WARRANTY.
THE LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. SECTION Error! Reference source not found. IS NOT APPLICABLE TO RESIDENTS OF QUEBEC.
8. Release, Waiver and Limitation of Liability
THIS CLAUSE DOES NOT APPLY TO QUEBEC CONSUMERS
(a) YOU ACKNOWLEDGE AND AGREE THAT FORM, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, SUPPLIERS, SERVICE PROVIDERS, RESELLERS, AND DISTRIBUTORS (COLLECTIVELY, “FORM” IN THIS SECTION 8) WILL IN NO WAY BE LIABLE TO YOU FOR ANY GENERAL, PECUNIARY, NON-PECUNIARY, INDIRECT, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, LOSS OF OPPORTUNITY, AND DAMAGES CAUSED BY DELAYS OR A FAILURE TO REALIZE EXPECTED SAVINGS) ARISING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCT, EVEN IF SUCH PERSON/ENTITIES IS/ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
(b) WHERE PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT YOU WAIVE AND RELEASE FORM OF ANY AND ALL LIABILITY FOR ANY LOSS, DAMAGE, EXPENSE OR INJURY, INCLUDING DEATH, WHICH YOU OR YOUR NEXT OF KIN MAY SUFFER RESULTING FROM YOUR USE OF THE PRODUCT DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE BY FORM.
(c) IN NO EVENT SHALL FORM’S LIABILITY UNDER THIS AGREEMENT TO YOU OR TO ANY THIRD PARTY CLAIMING THROUGH YOU OR ON YOUR BEHALF EXCEED THE PURCHASE PRICE OF THE PRODUCT THAT YOU PURCHASED OR THE COST OF REPAIRING OR REPLACING THE PRODUCT, WHICHEVER IS GREATER.
(d) THE LIMITATIONS OF LIABILITY SET OUT IN SECTIONS 8(a), 8(b) AND 8(c) ABOVE ARE INTENDED TO APPLY AND DO APPLY TO ANY DAMAGES, LOSSES, OR LIABILITY OF ANY TYPE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) AND EVEN IF FORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(e) THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 8 APPLY TO THE FULL EXTENT THEY ARE NOT PROHIBITED BY APPLICABLE LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. Binding Effect
(a) Equivalency. This electronic Agreement and any other materials incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing”, and to comply with all statutory, contractual and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation or proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
(b) Enurement. These terms and conditions and the rights and duties herein will be binding on and enure to the benefit of you and FORM and their successors and permitted assigns (including your heirs, executors and administrators).
(c) Force Majeure. No FORM entity shall be responsible for a failure to fulfil any obligations pursuant this Agreement or for delay in doing so if such failure or delay is due to circumstances beyond its reasonable control, such as acts of God, acts of government, war, riots, strikes and accidents in transportation.
10. Entire Agreement
THIS CLAUSE 10(a) IS NOT APPLICABLE TO QUEBEC CONSUMERS
(a) Entire Agreement. This Agreement, together with the Invoice, the Limited Warranty and any other materials expressly referred to herein, constitutes the complete and exclusive statement of all of the terms, conditions, representations and warranties between you and FORM with respect to the purchase and sale of any Product offered by FORM, and supersedes and replaces all other oral and written communications between the parties or otherwise relating to the subject matter of this Agreement.
(b) Amendments. Except as set forth in Section 15, this Agreement will not be and is incapable of being amended or varied, verbally or in writing, unless any such amendment or variation is in writing and signed by both you and a senior officer of FORM in an instrument that expressly refers to this Agreement.
(c) No Implicit Waivers or Novations. The failure by FORM to insist on strict compliance with any provision of this Agreement will not be deemed to be a waiver of such provision, and a waiver of any provision of these terms and conditions at any one time or times will not be deemed to be a waiver for any other time. The failure of FORM to assert its rights in a timely fashion for any of its rights or remedies under these terms and conditions will not be interpreted as a novation or a waiver of any subsequent or continuing breach and will not serve to modify, alter or restrict the right of FORM to assert any rights at any time thereafter.
(a) Severability. Each provision of this Agreement, and part thereof, is declared to be separate, separable and distinct from all other provisions and parts thereof. If any provision or part thereof is determined by a court of competent jurisdiction or other constituted legal authority to be void, unenforceable or unreasonable in whole or in part, it will not be deemed to affect or impair the enforceability or validity of any other promise or provision in this Agreement or any part thereof and the said court or other constituted legal authority will have the authority to limit such promise or provision as it deems proper.
(b) Non-Application. The United Nations Convention on Contracts for the International Sale of Goods, and any implementing legislation will not apply in any way to this Agreement or to the transactions contemplated by this Agreement.
(c) English Language. The parties have requested and agree that this Agreement and all documents relating thereto be drawn up in English / Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.
12. Dispute Resolution
THIS CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS
(a) Arbitration. Where permitted by applicable law, all disputes, controversies or claims arising out of or in connection with or in relation to this Agreement or the breach thereof, including any and all disputes, claims or question regarding: (i) the existence, validity, application, interpretation, performance, enforcement or termination of this Agreement; (ii) any dispute or claim arising out of or relating to the negotiation, execution, interpretation, application or performance of this Agreement; or (iii) any dispute or claim arising out of or relating to the design, manufacture, distribution, instruction, warning, performance or use of the Product (collectively, the “Dispute”), will be solely and exclusively referred to, and finally resolved by, binding arbitration pursuant to the Domestic Commercial Arbitration Rules of Procedure (if you are a Canadian customer) or the International Commercial Arbitration Rules of Procedure if you are a customer located outside of Canada) of the British Columbia International Commercial Arbitration Centre then in force (respectively, the “Arbitration Rules”). A single arbitrator shall be appointed by agreement of the Parties, or, in default of agreement, such arbitrator will be appointed in accordance with the Arbitration Rules. The arbitration will be governed by the laws of the Province of British Columbia and the laws of Canada as applicable therein. The arbitration will be held in Vancouver, British Columbia and will be conducted in the English language. The arbitrator shall have jurisdiction to award costs of the arbitration, including attorney’s fees and disbursements and arbitrator fees and expenses. Any award and the determination of such arbitrator will be final and binding upon you and FORM. A judgment on the award of the arbitrator may be entered into any court having jurisdiction over the party or parties against whom an award may be issued and each of you and FORM agrees to and hereby waives any defences against the enforceability and execution of any such judgment awarded by the arbitrator as contemplated in this Agreement. Judgment on the award of an arbitrator may be entered by any court having jurisdiction over the person or property of the person against whom enforcement of the judgment is sought. Where arbitration is prohibited by applicable laws, you and FORM hereby agree to the exclusive jurisdiction of the courts of the province of British Columbia, Canada with respect to any Disputes relating to this Agreement.
(b) No Trial by Jury. You hereby waive all rights to a trial by jury with respect to any claims and issues relating to or arising out of this Agreement.
THE FOLLOWING CLAUSE IS APPLICABLE TO U.S. CONSUMERS
(c) You may choose to have the arbitration conducted by telephone, based on written submissions, or at another mutually agreed upon location.
(d) YOU AND FORM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and FORM are instead electing that all claims and disputes shall be resolved by arbitration under this Agreement, except as specified herein. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(e) ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought in Vancouver, British Columbia, Canada. All other claims shall be arbitrated.
(f) You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 200 - 1090 Homer Street, Vancouver, BC, V6B 2W9, Canada, within 30 days after first becoming subject to this Agreement, or using one of the methods available at formswim.com/contact-us. Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of the arbitration provisions under this Agreement. If you opt out of this arbitration, all other parts of this Agreement will continue to apply to you. Opting out of this arbitration has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
(g) Except as provided in herein, if any part or parts of this 14 are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Section 14 shall continue in full force and effect.
(h) This Section will survive the termination of your relationship with FORM.
THIS CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS
You waive: (a) any right to object to venue or jurisdiction based on inconvenient forum or for any other reason, and (b) any statutory or other right pursuant to the laws of the jurisdiction in which the you are resident to have a court case or arbitral hearing relating to this Agreement adjudicated or resolved in that jurisdiction. Any rule of interpretation, law or regulation that provides that the language of a contract will be interpreted against the drafter will not apply to this Agreement.
14. Governing Law.
THIS CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS
This Agreement will be governed by and interpreted in accordance with the laws of the Province of British Columbia and the federal laws of Canada as if made and performed by and between parties situated in such province and without regard to the conflict of law rules that would apply a different body of law.
15. Updates and Supplementary Terms.
THIS CLAUSE IS NOT APPLICABLE TO QUEBEC CONSUMERS
This Agreement may be updated or supplemented by FORM from time to time. For Products purchased in specific countries, unique terms may replace or modify this Agreement if so provided with the Product or posted at the Site. All terms that are not changed by these unique country terms (if any) remain unchanged and in effect. Please visit the Site to obtain the latest version of, or supplements or any country or jurisdiction-unique terms to, this Agreement.
16. How to Contact FORM.
If you have any questions or comments regarding this Agreement, you may contact FORM using one of the methods available at formswim.com/contact-us or by mail at 200 - 1090 Homer Street, Vancouver, BC, V6B 2W9, Canada.